I support teachers, not a strike – Part 4 / 5 – Public policy issues are not labour relations
So at this point in my logic chain, I have:
- People should support education, which is mostly about teaching (a narrowing);
- The Government made a bad policy decision
- Teachers are willing to strike for the bad policy decision i.e., the issues
Except the issues aren’t really “strike worthy”. Funding levels are not significantly off from what they were — we’re not talking cuts like Alberta is seeing for health care. Larger class sizes have actually been more or less settled already with the latest offer, regardless of how few schools would actually see those theoretical limits. Layoffs will be done by attrition, local priority funding is going to school boards and has been increased, and violence in the classroom is based on faulty data.
Not exactly a strong rallying cry when you look at the substance. Which leaves only two other items — pay and benefits. The nuts and bolts of labour relations. And a trigger for the other issues that unions are claiming they are fighting for, for the “kids”, they say.
But are they “strike” issues?
You might think I’m referring to whether they are important enough or not to strike, the same issue as I already outlined. The so-called crisis may not exist, but the much bigger question is a fundamental one of governance.
The majority of the issues — all of them except pay and benefits — are not actually labour relations issues. I’m not saying that as a matter of opinion, I’m saying it as a matter of actual fact in the teacher contracts.
Special education funding? Not there.
Size of potential layoffs or firings or number of teachers hired? Not there.
Funding levels of education? Not there.
Violence in the classroom? Not there.
Use of merit-based hiring? Not there.
Teachers are told by the unions that this is terrible, this is evidence of the government not caring. But the unions are lying. The reason these “terms” are not in the contract or the offers is because they are NOT actually labour law issues. So they can’t be in the contract. In fact, as everyone keeps pointing out, these are PUBLIC POLICY issues to be decided by governments through public policy processes (like elections, stakeholder consultations, internal analysis, etc.), not through labour relations negotiations. In addition, to the extent they have to negotiate them, they are terms to be negotiated between the Government and the local school boards. Not with teachers. Because it isn’t part of the teacher contract.
The biggest priority of all is Class Sizes, supposedly at least. And in the last contract, it doesn’t appear. Instead, there is a non-binding “letter of commitment” from the Government outlining its intended policy approach. It can’t be in the contract because it’s not a labour law term or condition. It’s a public policy issue and not only will labour law not recognize it as a labour law issue, but the Crown also can’t fetter its sovereign rights through an illegal contract. Instead, classroom size is between school boards and schools, while the regulations on caps come from the Ministry of Education. And that can’t be “contracted” for, it’s not a labour law issue. And the exclusion of it is a black and white labour law condition. Look right now at the health care crisis in Alberta. Massive chaos over plans to adjust the health care budget. Clinics will have to close, doctors may leave to work in other provinces. Wait times will jump. And yet, the majority of the issues are not labour law conditions for doctors to negotiate, they’re public policy issues. Which the medical community is mobilizing around. Politically. Not mis-using labour negotiations to extort public policy positions.
In history, it is hard to find true comparators, because unions are more recent phenomenon. However, prior to the 1900s, attempts to “force” public policy changes through any means other than public policy discussions or as part of general democracy/governance were generally considered treason. In the 1920s and 30s, it was called extortion and racketeering.
Labour law helped clean some of that up, legitimized unions and the interest of “labour” in contracts. But as labour law has embraced unions and rule of employment law, it has equally been very clear over the last 80 years — public policy elements are best left for governments to decide in Parliament, not in labour contracts. Pay and benefits is the only element in the current list that can be part of the labour-negotiated contract, and labour law rules have turned “treason” and “extortion/racketeering” allegations into something more mundane. If you attempt to add things to a negotiation that are not part of the actual contract, i.e. things that cannot be part of the contract, it is called bargaining in bad faith.
Unions aren’t dumb but they might have got outsmarted
Unions know all this. They know that the public policy issues cannot be part of the contract. Yet if they focus on only the pay and benefits elements, no one will support the strike action. They needed the public policy issues to galvanize support. Not only from the public, but from the teachers too. Many of the teachers want an increase in pay and benefits, sure, likely even deserve it, but many wouldn’t go on strike for it. They care, but they care more about the students. For the unions to get members to go on strike, they know they need the teachers to go into a frenzy on the policy issues. That’s where they care. That’s where they’ll want to strike. Yet, as I outlined above and before, the reality i.e. the TRUTH not the rhetoric is that the policy issues are neither actually serious enough (both before and with the latest offer) to justify a strike nor do they have anything to do with actual labour relations terms and conditions for the contracts.
But for the union gambit to work — pushing for more money, better public policy, supported by teachers and parents — the unions need sheep who don’t look too closely at what is on the table. They need them whip-ready to strike and protest and stand on street corners with signs. Galvanizing support, even if it is based on false portrayals by both sides.
And last weekend, the Government of Ontario apparently conceded a bunch of elements and put a bunch of the public policy issues to bed. Class sizes? Reduced considerably, in line with what public polling says parents are willing to live with. Funding for special ed given to school boards (rather than direct to schools), but essentially restored. But what they weren’t willing to budge on was the limited pay raise to 1% and the benefits raise to 4%.
This basically takes the wind out of the union’s sails for galvanizing support. And in a normal negotiation, the union would tell the membership about the offer, and either put it to a vote or at least reassess remaining elements and desire to keep striking or negotiate remaining elements. But it appears the union decided to do what PSAC did back during the federal pay equity negotiations. They didn’t tell the membership about the “offer”, they just said “no”.
PSAC was faced with a similar problem back when it was negotiating pay equity. The two parties had agreed on the payouts for more than 95% of the members and TBS wanted to send out their cheques. The money was in an account, the computer was programmed, they were ready to press print. And PSAC said “no” — they wouldn’t agree until all the members’ negotiations were done. Why? Because once the 95% were paid, PSAC had no leverage to force concessions on the remaining 5%. At one point it was so bad, it was more like 98% vs. 2% remaining. And the Government of Canada i.e., TBS was stuck. As part of negotiations and labour law, the employer cannot violate the rules of negotiations and speak directly to PSAC members. It violates tons of rules and equates with bargaining in bad faith while undermining the union negotiators. It’s a way to “break” unions. So the rules say you can’t do it. But GoC was being crucified in the press — constant delays, no settlements, PSAC giving press conferences slamming and slagging them all over the place. And members listening to PSAC, duly lapping up every lie. Believing that it was all a mess still.
TBS reiterated their proposal to PSAC to pay out the 98%, and PSAC apparently refused again to take it to members. So TBS found a loophole in the rules. While TBS could not tell the members what they were proposing to the union negotiators, they COULD fulfill their reporting and accountability responsibility to Canadians and Parliament and TELL THEM the status of the negotiations. So they held a press conference and told Canadians. And indirectly, PSAC members. Shortly thereafter, PSAC agreed to binding arbitration for the remaining 2% and they got what they wanted anyway (wonky ways to calculate the last 2%). But it ended the delays and cheques started flowing.
This past weekend, an offer was apparently communicated to the unions. When asked about it by the press earlier today, the union refused to answer the question in public (they know if they admit it that members will be VERY unhappy AND if they end up in arbitration, the arbitrator will crucify them for it). I hope union members decide to ask the question of them too and force answers out of them. Because the government agreed to just about everything that was asked for except the pay and benefits. It’s not perfectly everything, but enough for most members to probably say, “Okay, settle, no more strikes”. Yet the union wouldn’t tell the members the details.
So, five days later, the government responded to the “no”. They held a press conference and reported to Ontarians and parents where they were in the negotiations and what they were proposing. A complete end-run around the union executive, which was completely pissed. Almost every one of their quotes today was a refusal to answer any questions about when they had first heard the offer and then a complaint that this wasn’t a negotiation, it was a press conference. Yep, that’s how governments roll now when they make an offer and the union refuses to tell its members. And today they are scrambling. Claiming it wasn’t in writing (yeah, public policy proposals don’t go in writing, which the unions know), that it was time-limited to a year (like all government budgeting commitments), and that it was just dumped on them at a press conference (yeah, cuz it seems you refused to tell your members you got a significantly new offer).
Presumably, teachers care when their union lies to them as much as they claim to care when the government lies to them. Unfortunately, from what I’ve seen of the sheep online, they lapped up what the union said and just ploughed ahead regurgitating the union’s spin.
So the issues they’re trying to “change” are not suitable for labour negotiations, but rather public policy processes, which they themselves admit. And the government “conceded” on most of them anyway. People have been wondering if the government disagreed with the union, then are they folding or have they agreed with their rationale?
From an outside perspective, the GoO has a huge problem. They are constitutionally obligated to provide education services. All it takes is one parent (or more likely a coalition of parents and thinktanks) to sue them for not providing educational services to their kids, and they’re in deep doodoo. People tend to forget that we have laws that say every child must be in some form of school. Legally obligating parents to educate them, which also adds duties and obligations for the government. It’s why they have to do full special education integration — because the students have legal rights to the same education, not a separate classroom. They have to be fully integrated. Anything less violates disability legislation, the provincial and federal bills of rights, and likely the Charter too. I try not to notice that the same “reasons” teachers and unions say integration can’t be done are the same wordings that teachers said “blacks couldn’t be integrated with whites” in schools in the Southern U.S.
But that leverage is why teacher strikes work. The union whips the members into striking on “issues” because they know with the kids as leverage, they can extort concessions from the government on a range of issues they can’t achieve through normal political processes. Eventually, the Government has no choice but to budge.
But it’s not “labour negotiation”. It’s achieving public policy changes they couldn’t get through rallies and elections by pointing a rights and Charter challenge cannon at Government, who can either leave students to be cannon fodder or eventually concede. That’s called extortion.
And the government just called the union on it.